NRS 51.385 Admissibility;
notice of unavailability or inability of child to testify.

_________

GENERAL PROVISIONS

NRS 51.015Definitions.As
used in this chapter, unless the context otherwise requires, the words and
phrases defined in NRS 51.025 to 51.055, inclusive, have the meanings ascribed to them
in such sections.

(Added to NRS by 1971, 793)

NRS 51.025“Declarant” defined.“Declarant”
means a person who makes a statement.

(Added to NRS by 1971, 793)

NRS 51.035“Hearsay” defined.“Hearsay”
means a statement offered in evidence to prove the truth of the matter asserted
unless:

1. The statement is one made by a witness
while testifying at the trial or hearing;

2. The declarant testifies at the trial or
hearing and is subject to cross-examination concerning the statement, and the
statement is:

(a) Inconsistent with the declarant’s testimony;

(b) Consistent with the declarant’s testimony and
offered to rebut an express or implied charge against the declarant of recent
fabrication or improper influence or motive;

(c) One of identification of a person made soon
after perceiving the person; or

(d) A transcript of testimony given under oath at
a trial or hearing or before a grand jury; or

3. The statement is offered against a
party and is:

(a) The party’s own statement, in either the
party’s individual or a representative capacity;

(b) A statement of which the party has manifested
adoption or belief in its truth;

(c) A statement by a person authorized by the
party to make a statement concerning the subject;

(d) A statement by the party’s agent or servant
concerning a matter within the scope of the party’s agency or employment, made
before the termination of the relationship; or

(e) A statement by a coconspirator of a party
during the course and in furtherance of the conspiracy.

(Added to NRS by 1971, 793)

NRS 51.045“Statement” defined.“Statement”
means:

1. An oral or written assertion; or

2. Nonverbal conduct of a person, if it is
intended as an assertion.

(Added to NRS by 1971, 794)

NRS 51.055“Unavailable as a witness” defined.

1. A declarant is “unavailable as a
witness” if the declarant is:

(a) Exempted by ruling of the judge on the ground
of privilege from testifying concerning the subject matter of the declarant’s
statement;

(b) Persistent in refusing to testify despite an
order of the judge to do so;

(c) Unable to be present or to testify at the
hearing because of death or then existing physical or mental illness or
infirmity; or

(d) Absent from the hearing and beyond the
jurisdiction of the court to compel appearance and the proponent of the
declarant’s statement has exercised reasonable diligence but has been unable to
procure the declarant’s attendance or to take the declarant’s deposition.

2. A declarant is not “unavailable as a
witness” if the declarant’s exemption, refusal, inability or absence is due to
the procurement or wrongdoing of the proponent of the declarant’s statement for
the purpose of preventing the witness from attending or testifying.

(Added to NRS by 1971, 794)

NRS 51.065General rule.

1. Hearsay is inadmissible except as
provided in this chapter, title 14 of NRS and the Nevada Rules of Civil
Procedure.

2. This section constitutes the hearsay
rule.

(Added to NRS by 1971, 794)

NRS 51.067Hearsay within hearsay.Hearsay
included within hearsay is not excluded under the hearsay rule if each part of
the combined statements conforms to an exception to the hearsay rule provided
in this chapter.

(Added to NRS by 1971, 798)

NRS 51.069Credibility of declarant.

1. When a hearsay statement has been
admitted in evidence, the credibility of the declarant may be attacked or
supported by any evidence which would be admissible for those purposes if the
declarant had testified as a witness.

2. Evidence of a statement or conduct by
the declarant at any time, which is inconsistent with the declarant’s hearsay
statement, is not subject to any requirement that the declarant must have been
afforded an opportunity to deny or explain.

3. If the party against whom a hearsay
statement has been admitted calls the declarant as a witness, the party may
examine the witness on that statement as if the witness were under
cross-examination.

(Added to NRS by 1971, 798; A 1979, 25)

EXCEPTIONS

Availability of Declarant Immaterial

NRS 51.075General exception; other exceptions illustrative.

1. A statement is not excluded by the
hearsay rule if its nature and the special circumstances under which it was
made offer assurances of accuracy not likely to be enhanced by calling the
declarant as a witness, even though the declarant is available.

2. The provisions of NRS 51.085 to 51.305,
inclusive, are illustrative and not restrictive of the exception provided by
this section.

(Added to NRS by 1971, 794)

NRS 51.085Present sense impressions.A
statement describing or explaining an event or condition made while the
declarant was perceiving the event or condition, or immediately thereafter, is
not inadmissible under the hearsay rule.

(Added to NRS by 1971, 794)

NRS 51.095Excited utterances.A
statement relating to a startling event or condition made while the declarant
was under the stress of excitement caused by the event or condition is not
inadmissible under the hearsay rule.

(Added to NRS by 1971, 794)

NRS 51.105Then existing mental, emotional or physical condition.

1. A statement of the declarant’s then
existing state of mind, emotion, sensation or physical condition, such as
intent, plan, motive, design, mental feeling, pain and bodily health, is not
inadmissible under the hearsay rule.

2. A statement of memory or belief to
prove the fact remembered or believed is inadmissible under the hearsay rule
unless it relates to the execution, revocation, identification or terms of
declarant’s will.

(Added to NRS by 1971, 795)

NRS 51.115Statements for purposes of medical diagnosis or treatment.Statements made for purposes of medical
diagnosis or treatment and describing medical history, or past or present
symptoms, pain or sensations, or the inception or general character of the
cause or external source thereof are not inadmissible under the hearsay rule
insofar as they were reasonably pertinent to diagnosis or treatment.

(Added to NRS by 1971, 795)

NRS 51.125Recorded recollection.

1. A memorandum or record concerning a
matter about which a witness once had knowledge but now has insufficient
recollection to enable the witness to testify fully and accurately is not
inadmissible under the hearsay rule if it is shown to have been made when the
matter was fresh in the witness’s memory and to reflect that knowledge
correctly.

2. The memorandum or record may be read
into evidence but may not itself be received unless offered by an adverse
party.

(Added to NRS by 1971, 795)

NRS 51.135Record of regularly conducted activity.A
memorandum, report, record or compilation of data, in any form, of acts,
events, conditions, opinions or diagnoses, made at or near the time by, or from
information transmitted by, a person with knowledge, all in the course of a
regularly conducted activity, as shown by the testimony or affidavit of the
custodian or other qualified person, is not inadmissible under the hearsay rule
unless the source of information or the method or circumstances of preparation
indicate lack of trustworthiness.

NRS 51.145Absence of entry in records of regularly conducted activity.Evidence that a matter is not included in the
memoranda, reports, records or data compilations, in any form, of a regularly
conducted activity is not inadmissible under the hearsay rule to prove the
nonoccurrence or nonexistence of the matter, if the matter was of a kind of
which a memorandum, report, record or data compilation was regularly made and
preserved.

(Added to NRS by 1971, 795)

NRS 51.155Public records and reports.Records,
reports, statements or data compilations, in any form, of public officials or
agencies are not inadmissible under the hearsay rule if they set forth:

1. The activities of the official or
agency;

2. Matters observed pursuant to duty
imposed by law; or

3. In civil cases and against the State in
criminal cases, factual findings resulting from an investigation made pursuant
to authority granted by law,

Ę unless the
sources of information or the method or circumstances of the investigation
indicate lack of trustworthiness.

(Added to NRS by 1971, 795)

NRS 51.165Required reports.Records
or data compilations, in any form, of births, fetal deaths, deaths or marriages
are not inadmissible under the hearsay rule if the report thereof was made to a
public office pursuant to requirements of law.

(Added to NRS by 1971, 795)

NRS 51.175Absence of public record or entry.To
prove:

1. The absence of a record, report,
statement or data compilation, in any form; or

2. The nonoccurrence or nonexistence of a
matter of which a record, report, statement or data compilation, in any form,
was regularly made and preserved by a public officer, agency or official,

Ę evidence in
the form of a certificate of the custodian or other person authorized to make
the certification, or testimony, that diligent search failed to disclose the
record, report, statement, data compilation or entry is not inadmissible under
the hearsay rule.

(Added to NRS by 1971, 795)

NRS 51.185Records of religious organizations.Statements
of births, marriages, divorces, deaths, legitimacy, ancestry, relationship by
blood or marriage, or other similar facts of personal or family history,
contained in a regularly kept record of a religious organization, are not
inadmissible under the hearsay rule.

(Added to NRS by 1971, 796)

NRS 51.195Marriage, baptismal and similar certificates.Statements of fact contained in a certificate
that the maker performed a marriage or other ceremony or administered a
sacrament, made by a member of the clergy, public official or other person
authorized by the rules or practices of a religious organization or by law to
perform the act certified, and purporting to have been issued at the time of
the act or within a reasonable time thereafter, are not inadmissible under the
hearsay rule.

(Added to NRS by 1971, 796)

NRS 51.205Family records.Statements
of fact contained in family Bibles, genealogies, charts, engravings on rings,
inscriptions on family portraits, engravings on urns, crypts or tombstones, or
the like, are not inadmissible under the hearsay rule.

(Added to NRS by 1971, 796)

NRS 51.215Records of documents affecting interest in property.The record of a document purporting to
establish or affect an interest in property, as proof of the content of the
original recorded document and its execution and delivery by each person by
whom it purports to have been executed, is not inadmissible under the hearsay
rule if the record is a record of a public office and an applicable statute
authorized the recording of documents of that kind in that office.

(Added to NRS by 1971, 796)

NRS 51.225Statement in document affecting interest in property.A statement contained in a document purporting
to establish or affect an interest in property is not inadmissible under the
hearsay rule if the matter stated was relevant to the purpose of the document,
unless dealings with the property since the document was made have been
inconsistent with the truth of the statement or the purport of the document.

(Added to NRS by 1971, 796)

NRS 51.235Statements in ancient documents.Statements
in a document more than 20 years old whose authenticity is established are not
inadmissible under the hearsay rule.

(Added to NRS by 1971, 796)

NRS 51.245Market reports; commercial publications.Market quotations, tabulations, lists,
directories or other published compilations, generally used and relied upon by
the public or by persons in particular occupations, are not inadmissible under
the hearsay rule.

(Added to NRS by 1971, 796)

NRS 51.255Learned treatises.To
the extent called to the attention of an expert witness upon cross-examination
or relied upon by the expert witness in direct examination, a statement
contained in a published treatise, periodical or pamphlet on a subject of
history, medicine or other science or art, is not inadmissible under the
hearsay rule if such book is established as a reliable authority by the
testimony or admission of the witness or by other expert testimony or by
judicial notice.

(Added to NRS by 1971, 796)

NRS 51.265Reputation concerning personal or family history.Reputation among members of a person’s family
by blood or marriage, or among his or her associates, or in the community, is
not inadmissible under the hearsay rule if it concerns his or her birth,
marriage, divorce, death, legitimacy, relationship by blood or marriage,
ancestry or other similar fact of his or her personal or family history.

(Added to NRS by 1971, 796)

NRS 51.275Reputation concerning boundaries or general history.Reputation in a community, arising before the
controversy, as to:

1. Boundaries of or customs affecting
lands in the community; and

2. Events of general history important to
the community or to the State or nation in which the community is located,

Ę are not
inadmissible under the hearsay rule.

(Added to NRS by 1971, 797)

NRS 51.285Reputation as to character.Reputation
of a person’s character among the person’s associates or in the community is
not inadmissible under the hearsay rule.

(Added to NRS by 1971, 797)

NRS 51.295Judgment of previous conviction.

1. Evidence of a final judgment, entered
after trial or upon a plea of guilty or guilty but mentally ill, but not upon a
plea of nolo contendere, adjudging a person guilty of a crime punishable by
death or imprisonment in excess of 1 year is not inadmissible under the hearsay
rule to prove any fact essential to sustain the judgment.

2. This section does not make admissible,
when offered by the State in a criminal prosecution for purposes other than
impeachment, a judgment against a person other than the accused.

3. The pendency of an appeal may be shown
but does not affect admissibility.

NRS 51.305Judgment as to boundaries or personal, family or general
history.A judgment is not
inadmissible under the hearsay rule as proof of matters of personal, family or
general history, or boundaries, essential to the judgment, if the matters would
be provable by evidence of reputation.

(Added to NRS by 1971, 797)

Declarant Unavailable

NRS 51.315General exception; other exceptions illustrative.

1. A statement is not excluded by the
hearsay rule if:

(a) Its nature and the special circumstances
under which it was made offer strong assurances of accuracy; and

(b) The declarant is unavailable as a witness.

2. The provisions of NRS 51.325 to 51.355,
inclusive, are illustrative and not restrictive of the exception provided by
this section.

(Added to NRS by 1971, 797)

NRS 51.325Former testimony.Testimony
given as a witness at another hearing of the same or a different proceeding, or
in a deposition taken in compliance with law in the course of another
proceeding, is not inadmissible under the hearsay rule if:

1. The declarant is unavailable as a
witness; and

2. If the proceeding was different, the
party against whom the former testimony is offered was a party or is in privity
with one of the former parties and the issues are substantially the same.

(Added to NRS by 1971, 797)

NRS 51.335Statement under belief of impending death.A statement made by a declarant while
believing that his or her death was imminent is not inadmissible under the
hearsay rule if the declarant is unavailable as a witness.

(Added to NRS by 1971, 797)

NRS 51.345Statement against interest.

1. A statement which at the time of its
making:

(a) Was so far contrary to the pecuniary or
proprietary interest of the declarant;

(b) So far tended to subject the declarant to
civil or criminal liability;

(c) So far tended to render invalid a claim by
the declarant against another; or

(d) So far tended to make the declarant an object
of hatred, ridicule or social disapproval,

Ę that a
reasonable person in the position of the declarant would not have made the
statement unless the declarant believed it to be true is not inadmissible under
the hearsay rule if the declarant is unavailable as a witness. A statement
tending to expose the declarant to criminal liability and offered to exculpate
the accused in a criminal case is not admissible unless corroborating
circumstances clearly indicate the trustworthiness of the statement.

2. This section does not make admissible a
statement or confession offered against the accused made by a codefendant or
other person implicating both himself or herself and the accused.

1. A statement concerning the declarant’s
own birth, marriage, divorce, legitimacy, relationship by blood or marriage,
ancestry or other similar fact of personal or family history is not
inadmissible under the hearsay rule if the declarant is unavailable as a
witness, even though declarant had no means of acquiring personal knowledge of
the matter stated.

2. A statement concerning the matters
enumerated in subsection 1, and death also, of another person is not
inadmissible under the hearsay rule if the declarant:

(a) Was related to the other by blood or marriage
or was so intimately associated with the other’s family as to be likely to have
accurate information concerning the matter declared; and

(b) Is unavailable as a witness.

(Added to NRS by 1971, 798)

Statement of Child Describing Sexual Conduct or Physical
Abuse

NRS 51.385Admissibility; notice of unavailability or inability of child to
testify.

1. In addition to any other provision for
admissibility made by statute or rule of court, a statement made by a child
under the age of 10 years describing any act of sexual conduct performed with
or on the child or any act of physical abuse of the child is admissible in a
criminal proceeding regarding that act of sexual conduct or physical abuse if:

(a) The court finds, in a hearing out of the
presence of the jury, that the time, content and circumstances of the statement
provide sufficient circumstantial guarantees of trustworthiness; and

(b) The child testifies at the proceeding or is
unavailable or unable to testify.

2. In determining the trustworthiness of a
statement, the court shall consider, without limitation, whether:

(a) The statement was spontaneous;

(b) The child was subjected to repetitive
questioning;

(c) The child had a motive to fabricate;

(d) The child used terminology unexpected of a
child of similar age; and

(e) The child was in a stable mental state.

3. If the child is unavailable or unable
to testify, written notice must be given to the defendant at least 10 days
before the trial of the prosecution’s intention to offer the statement in
evidence.